Always revitalising and evolving
About the project
The Singapore Academy of Law’s Law Reform Committee examined whether there should be a right to judicial review of negative jurisdictional rulings made by arbitral tribunals in arbitrations governed by the International Arbitration Act (Chapter 143A, 2002 Revised Edition), which incorporates the UNCITRAL Model Law on International Commercial Arbitration. Under Article 16(3) of the Model Law, if there is a challenge to the jurisdiction of a tribunal and the tribunal decides that it lacks jurisdiction, the aggrieved party has no recourse to judicial review against that negative ruling. The Article was drafted in that manner as it was thought inappropriate for a court to compel the tribunal to continue with the arbitration after it had so ruled.
The Committee recommended that such a right of judicial review should be introduced for the following reasons:
(a) One of the principal purposes of international commercial arbitration is that no party should be able to bring the dispute to its national court. To distance themselves from the national courts of either party, a neutral seat of arbitration, which has little or no connection with either party or the subject matter of the dispute, may be chosen. A wrong negative jurisdictional ruling which is not capable of judicial review will, in effect, shut out access to the agreed form of resolution in that neutral seat, thereby thrusting upon parties what they intended to avoid in the first place, namely, litigation in the national court of one of the parties.
(b) Depending on the circumstances of the case, problems or injustice can arise if the tribunal wrongly makes a negative ruling.
(c) Potential claimants, for the reason stated in (a) above, will favour placing the arbitration in a seat where court review of a negative ruling is available.
(d) Although the Model Law (and therefore Article 16(3)) may be said to reflect current international consensus, nonetheless, there is a discernible lack of international consensus specifically with regard to the Model Law’s approach to negative jurisdictional rulings by arbitral tribunals.
(e) It is unfair and inconsistent to deny judicial review of negative jurisdictional rulings when judicial review of erroneous positive jurisdictional rulings is permitted under the Model Law.
Project status: Completed
Areas of law
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